Defendant Narcise Gaspard, in June 8, 2011 moving papers submitted on his behalf by counsel, seeks vacatur of his February 28, 2006 robbery judgment of conviction on the grounds that he was denied his constitutional right to the effective assistance of counsel.^[FN1] See CPL 440.10(1)(h). Specifically, defendant, who came to the United States from Haiti as a lawful permanent resident (green card holder) at age four in 1988 with his mother and twin brother (defendant's Affidavit at Paragraph 10) contends that his attorney failed to advise him of any immigration consequences resulting from his plea of guilty to robbery in the third degree (Penal Law § 160.05).^[FN2] Annexed to defendant's moving papers is a June 6, 2011 affidavit by defendant wherein defendant alleges that his 18B appointed counsel, Carl Becker, Esq., "did not fully explain the possibility of deportation [*2]as a result of pleading guilty." (Defendant's Affidavit at Paragraph 7). Defendant further alleges that Mr. Becker never inquired into his immigration status, nor suggested that it was something that defendant need be concerned with in taking the plea. Moreover, defendant states: "Despite the brief [immigration] warning by the Court, my attorney did not make a record clarifying that he had discussed the matter with me and that I understood." (Affidavit at Paragraph 11). Defendant contends that Justice Gerges only briefly mentioned "that a non-citizen would be deported as a result of the plea. I was wholly unaware that this general warning was applicable to me. Having lived in the United States my entire life, I had absolutely no idea that pleading guilty to [robbery in the third degree] would jeopardize someone in my position as I am a legal resident here." (Affidavit at Paragraph 10).

The People submitted an August 17, 2011 Affirmation in Opposition to defendant's motion along with a Memorandum of Law. Annexed to the People's responsive papers is an Affirmation by defendant's plea counsel, Carl Becker, Esq., in which Mr. Becker avers that he did in fact discuss the possible immigration consequences with defendant before defendant accepted the plea to robbery in the third degree. Mr. Becker avers that in response to his own questioning of defendant at Criminal Court Arraignment regarding whether defendant was born in the United States and if he was a citizen, defendant informed him that he was not born in this country and was not a United States citizen. (Affirmation at Paragraph 3). Mr. Becker further asserts that as a result of this information he told defendant that he should meet with an immigration attorney as well as speak with members of his family before agreeing to any plea. (Affirmation at Paragraph 4). Mr. Becker in his Affirmation also avers that he explained to defendant "that if he pled guilty to a violent felony, or was convicted of one, he most certainly would be deported as a result. I also told him that if he was deported and reentered the United States illegally he would be sent to prison. I told him to consider the possible consequences very carefully before he took a plea." (Affirmation at Paragraph 5). Mr. Becker asserts that he had this conversation with defendant on several adjourned dates.

Under the circumstances this Court ordered a Padilla evidentiary hearing to determine whether defendant could prove this disputed claim by a preponderance of the evidence. See Decision and Order of August 24, 2011; see also CPL 440.30(5) and (6) and People v Reynoso, 88 AD3d 1162 (3d Dept 2011). Prior to the hearing, which was held on October 14, 2011, defendant submitted supplemental papers to the Court highlighting the horrendous conditions in Haiti for individuals deported back there as a result of their criminal convictions.^[FN3] Because defendant is presently detained in the Batavia Immigration detention facility he was unable to appear personally in Court but was able to attend the hearing via audio and visual teleconference.

Defendant was charged under the above-captioned indictment with acting in concert with co-defendant Noel Evans ("Evans") in the commission of robbery in the first degree (Penal law § 160.15-3), robbery in the second degree (Penal Law § 160.10-1), robbery in the third degree (Penal Law § 160.05), grand larceny in the fourth degree (Penal Law § 155.30-5) (two counts), [*3]petty larceny (Penal Law § 155.25), criminal possession of stolen property in the fourth degree (Penal Law § 165.45-1 ^[FN4]), and criminal possession of a weapon in the fourth degree (Penal Law § 256-01-1 [two counts] [a switchblade knife and a broken bottle]).

Specifically, this Court gleans from the People's responsive papers and the felony complaint that defendant was accused of acting in concert with Evans and three other unapprehended others, on May 27, 2005, in front of 277 East 38th Street, Brooklyn, all of whom surrounded Innocent Ebite and demanded his iPod and cell phone. Evans brandished a knife and reached into Ebites's pocket and took these items. Defendant blocked the victim from running away. Ebite then identified defendant in a street point-out two blocks from the crime scene within three hours of the robbery. At his arrest Evans was found holding the victim's iPod in his hand, with a switchblade in his pants pocket. (Assistant District Attorney Linda Breen's October 28, 2011 Affirmation at 2).

According to notations in the court file, on February 28, 2006 defendant "failed" a plea allocution before the Honorable Sheryl Parker in Part 30. The case was then sent forthwith to Part 17 (Justice Gerges) for a suppression hearing. Defendant and Evans pleaded guilty prior to the hearings. On that date defendant, represented by Carl Becker, Esq., pleaded guilty to robbery in the third degree (a Class D non-violent crime) for a promised sentence of six months in jail and five years of probation.^[FN5] During the plea proceeding Justice Gerges told defendant: "Now if you are not a United States citizen, your immigration status will be jeopardized by this plea of guilty and you would be deported at any time prior to the expiration, of your sentence;^[FN6] do you understand that, sir? The defendant responded "Yes." (Plea minutes at 21).^[FN7] Having been incarcerated at Rikers Island for nearly ten months, defendant was released from jail on the day of his plea.

Defendant was subsequently found in violation of probation ("VOP") by failing to make numerous required program appearances. He was re-sentenced on February 24, 2010 by the Honorable Michael Brennan on a violation of probation to one-to-three years in state prison. [*4]While incarcerated upstate on the VOP sentence defendant was notified by the United States Immigration and Customs Enforcement Agency ("ICE") that he was being removed from this country and deported to Haiti. Defendant was then transferred to a federal immigration detention center in Batavia, New York where he remains.

THE HEARING

A Padilla hearing was conducted by this Court on October 14, 2011. Defendant testified on his own behalf and Mr. Becker testified on behalf of the People. In sum, defendant testified that he was innocent of the robbery and pleaded guilty in order to be immediately released from jail, having already been incarcerated for nearly 10 months.^[FN8] Defendant contended that he was never asked by Mr. Becker about his citizenship status but admitted he did not volunteer this information. Defendant was adamant that Mr. Becker never advised him of the immigration consequences of his guilty plea and insisted that he would not have pleaded if he had known he would be deported to Haiti, where he has no ties. Defendant further maintained that he did not believe that Justice Gerges' immigration warning applied to him because he was a permanent lawful resident. Defendant conceded that he perjured himself to get out of jail when he admitted guilt during his robbery plea. He recognized that he was also under oath at the Padilla hearing and agreed that he did not want to be deported to Haiti.

Mr. Becker testified that he in fact did learn that defendant was not a United States citizen as a result of his questioning defendant before his first appearance in Criminal Court on this case, and thereafter, on some adjournment dates, he advised defendant of the potential negative immigration consequences of entering a guilty plea, namely, that if he was convicted of a felony he would almost certainly face deportation. Mr. Becker also advised defendant to seek outside immigration legal advice and to consult with his family before taking a guilty plea. Mr. Becker refreshed his memory with notes from his file in this case and these notes were thereafter provided to the Court and to counsel for each side. They do show apparently contemporaneous references to immigration advice being given to defendant by Mr. Becker.

The parties thereafter submitted post-hearing Affirmations and Memoranda of Law at the request of the Court, and I heard oral argument on November 22, 2011.

Prior to the United States Supreme Court's holding in Padilla v Kentucky, 559 US__, 130 S Ct 1473 (2010) it was well-settled that an attorney in a New York criminal case did not have an affirmative duty to advise a client about the "collateral" immigration consequences of taking a guilty plea. See People v Ford, 86 NY2d 397 (1995). A court, however, could find that a defense attorney rendered ineffective assistance if that attorney affirmatively gave misadvice about the immigration consequences of a guilty plea. See People v McDonald, 1 NY3d 109 (2003). The landscape was changed in 2010 when the Supreme Court decided Padilla. As the Appellate Division - Second Department has very recently and succinctly summarized Padilla's mandate, it "held that where the deportation consequences of a plea of guilty are clear, defense counsel must provide accurate immigration advice and where the deportation consequences are unclear or uncertain, defense counsel need not do more than advise the defendant that the plea could have adverse immigration consequences." People v Marino-Affaitati, 88 AD3d 742 (2d Dept 2011).

The People in the case at bar argue that Padilla should not be retroactively applied to cases on collateral review. This Court has previously rejected this position. See People v Garcia, 29 Misc 3d 756 (S Ct, Kings County 2010).^[FN10] I adhere to the Garcia holding that in most cases Padilla should be retroactively applied, since Padilla merely applied the well-established Strickland v Washington (466 US 668 [1984]) standard concerning ineffective assistance of counsel.^[FN11] [*6]

Whether defendant was rendered the effective assistance of counsel in regards to immigration advice under both the federal and New York standards is really answered by the Court's findings of fact above. Under the federal test for ineffective assistance of counsel a reviewing court must engage in a two-prong analysis: (1) was counsel's performance deficient and (2) whether a defendant suffered actual prejudice as a result of that deficiency. Under the New York test a defendant's right to the effective assistance of counsel is met "so long as the evidence, the law and the circumstances of a particular case, viewed in totality, as of the time of the representation, reveal that the attorney provided meaningful representation." People v Baldi, 54 NY2d 137, 147 (1981); see also People v Brown, 17 NY3d 863 (2011); People v Benevento, 91 NY2d 708 (1998). The "focus of the New York standard is on the fairness of the process as a whole.'" People v Miller, 87 AD3d 1075 (2d Dept 2011) citing People v Benevento, supra. "It is a flexible standard." People v Bowles, __AD3d ___, 932 NYS2d 112, 2011 WL 5222694 (2d Dept Nov 1, 2011).

It is clear from the Court's factual findings that defendant has not carried his burden of proving by a preponderance of the evidence every fact essential to support his Padilla motion. CPL 440.30(6). Having found that, contrary to defendant's contentions and testimony, Mr. Becker in fact provided defendant with appropriate, albeit not perfect, immigration advice, this Court cannot now conclude that Mr. Becker's representation was either deficient under the federal Strickland test or under the "meaningful representation" New York standard.

As artfully explained by defendant's new counsel on this motion, it is certainly true that Mr. Becker had an over-simplified and decidedly imperfect understanding of immigration law and more specifically of its collateral consequences for criminal convictions. For example, deportation is not mandatory for all felonies, as he advised defendant. By way of a further illustration of the limitations and drawbacks of Mr Becker's knowledge in this area of the law, a sentence for less than one year in jail without probation (although not offered by the District Attorney in this case) could have made defendant more eligible to have his removal withheld under 8 USC § 1231(b)(3). A defense lawyer with a more sophisticated and nuanced knowledge of immigration law and practice could have at least pressed negotiations with the prosecutor to seek such a disposition — one that could have included more jail time than that imposed — without probation, which Immigration Courts treat as suspended sentences, enabling the Immigration Court to deem the prison sentence to be longer than what was actually imposed.

As the post-Padilla litigation continues in our state and federal trial and appellate courts throughout the nation, and as criminal defense counsel become more familiar with the intricacies of immigration law, it can be anticipated that more sophisticated advice and representation in this area will become the rule. As it stands now, it is not.^[FN12] Therefore, in the final analysis I conclude that [*7]the scenario described above is too speculative to support a cognizable Padilla 440 claim at this time in the circumstances of this particular case. Defendant has failed to prove that he was given no advice or substantially erroneous advice about the risks of deportation. He has also failed to prove prejudice. His plea must therefore be considered knowing and voluntary and not the result of ineffective assistance of counsel within the holding of Padilla.

Although this Court is deeply troubled by the horrendous conditions facing criminal deportees in Haiti, as set forth in the supplemental papers submitted by defendant, which were originally addressed to the Immigration Court and the United States Department of State, I cannot base a ruling on my concern for the defendant's potential future plight caused by the enforcement of federal law.^[FN13] Moreover, there is no statutory bare interest of justice relief available for a 440 defendant. Further, a Padilla decision in defendant's favor not based on a clearly articulated constitutional or statutory violation would likely not be followed by Immigration Courts. See Saleh v Gonzales, 495 F3d 17 (2d Cir 2007); Pickering v Gonzales, 465 F3d 263 (6th Cir 2006); see also Wellington v Holder, 623 F3d 115 (2d Cir 2010), cert denied __US__, 131 S Ct 2960 (2011).

Accordingly, for the all reasons addressed herein, defendant's motion is DENIED.

The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal the denial of defendant's CPL 440.10 motion. This application must be made within 30 days of service of this Decision and Order. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted (22 NYCRR 671.5).

The application must contain defendant's name and address, indictment number, the questions of law or fact to be reviewed and a statement that no prior application for such certificate has been made. A copy of the court order and a copy of any opinion of the court must be included. In addition, a copy of the application must be served on the District Attorney, as follows: Kings County District Attorney Appeals Bureau, 350 Jay Street, Brooklyn, New York, 11201.

The Clerk is directed to mail a copy of this Decision and Order to defendant's attorney, Michael Biniakewitz, Esq., Spar & Bernstein, PC, 225 Broadway, Suite 512, New York, New York 10007 and to Assistant District Attorneys Linda Breen and Matthew D'Emic, Kings County District [*8]Attorney's Office, 350 Jay Street, Brooklyn, New York 11201, or personally provide copies of this Decision to counsel in Court.

IT IS SO ORDERED.

ENTER,

___________________________

J.S.C.